Purposive approach

Question 1

How does the purposive approach go beyond the mischief rule in just looking to see what the gap was in the old law?

Answer 1

The judges are deciding what they believe Parliament meant to achieve

Question 2

In what case did Lord Denning praise the use of the purposive approach?

Answer 2

Magor and St Mellons v Newport Corporation 1950

Question 3

Which lord criticised Lord Denning’s praise of the purposive approach?

Answer 3

Lord Scarman

Question 4

What did Lord Scarman say in regards to the use of anything but the literal rule?

Answer 4

“We are to be governed not by Parliament’s intentions but by Parliament’s enactments”

Question 5

What two cases illustrate the purposive approach?

Answer 5

R v Registrar-General, ex parte Smith 1990

R v Secretary of State 2003

Question 6

What was the Act and words in dispute in R v Registrar-General, ex parte Smith 1990?

Answer 6

s51 of the Adoption Act 1976

“Shall….supply”

Question 7

What are the facts of the case R v Registrar-General expert Smith 1990?

Answer 7

Charles Smith applied for information to enable him to obtain his birth certificate and was prepared to see a counsellor. However he had been convicted of two murders and was detained at Broad-moor as he suffered reoccurring bouts of psychotic illness and his psychiatrist thought that it was possible he might be hostile towards his natural mother

Question 8

If the literal view of the Adoption Act 1976 was taken in R v Registrar-General ex parte Smith 1990, what would the Registrar-General have had to do ?

Answer 8

the Registrar-General would have had to supply Mr.Smith with the information since the Act uses the phrase “shall…supply”

Question 9

What did the judges in the Court of Appeal decide to use in the case R v Registrar-General ex parte Smith 1990?

Answer 9

the purposive approach

Question 10

Why did the judges in the Court of Appeal decide to use the purposive approach in the case R v Registrar-General ex parte Smith 1990?

Answer 10

as despite the plain language of the Act, Parliament could not have intended to promote serious crime

Question 11

What did the House of Lords have to decide in R v Secretary of State 2003?

Answer 11

whether organisms created by cell nuclear replacement (CNR) came within the definition of ‘embryo’ in the Human Embryology and Fertilisation Act 1990

Question 12

What was the Act and words in dispute in R v Secretary of State 2003?

Answer 12

Human Embryology Act 1990
“embryo”
“when fertilisation is complete”

Question 13

What was the problem in the case of R v Secretary of State 2003?

Answer 13

CNR (cell nuclear replacement) was not possible in 1990 when the Act was passed and the problem was that fertilisation is not used in CNR

Question 14

What was the outcome of the case in R v Secretary of State 2003 as stated by Lord Bingham?

Answer 14

CNR was not possible in 1990 when the Act was passed and so Parliament could not have intended to distinguish between embryos produced by or without fertilisation since it was unaware of the latter

Question 15

Which Lord had commented on R v Secretary of State 2003 1990?

Answer 15

Lord Bingham

Question 16

Why is it an advantage that the purposive approach is broad?

Answer 16

as it allows the law to cover more situations than applying words literally

Question 17

When is the purposive approach particularly useful?

Answer 17

where there is new technology which was unknown when the law was enacted

Question 18

What case illustrates the purposive approach usefulness when there is new technology which is unknown when the law was enacted ?

Answer 18

R v Secretary of State 2003

Question 19

How does use of the purpose approach make the law less certain?

Answer 19

as it is impossible to know when judges will use the rule and also what result it might lead to making it difficult for lawyers to advise clients on the law

Question 20

How does the purposive approach allow unelected judges to ‘make’ law?

Answer 20

as they are deciding what they think the law should be rather than using the words that Parliament enacted

Question 21

How is it difficult to discover the intention of Parliament ?

Answer 21

as reports in Parliament in Hansard give every detail of debates including MP’s who did not agree with the law that was under discussion